Corcoran and Comcare (Compensation) - [2015] AATA 776

Corcoran and Comcare (Compensation) [2015] AATA 776 (6 October 2015)

Division

GENERAL DIVISION

File Number(s)

2014/3617

Re

Peter Corcoran

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Senior Member CR Walsh

Date 6 October 2015

Place Perth
The Tribunal affirms the decision under review.
...(Sgd) CR Walsh.....................................................................
Senior Member CR Walsh
CATCHWORDS
WORKERS’ COMPENSATION – Applicant has “bilateral sensorineural hearing loss” condition – whether Applicant’s hearing loss condition an “injury” or a “disease” – whether Applicant’s Commonwealth employment contributed to his hearing loss condition “to a material degree” or “to a significant degree” – date of disease (injury) - decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 - s 4(1) - s 5A(1) – s 5B(1) – s 5B(2) – s 5B(3) – s 7(4) - s 14
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 – items 11 and 41 of Schedule 1
Workplace Health and Safety Regulation 1997 (Qld)- reg 68(1)
CASES
Australia Postal Corporation v Burch [1998] FCA 42
Banks v Comcare [1996] FCA 382
Comcare v Eteridge [2006] FCAFC; (2006) 149 FCR 522
Comcare v Sahu-Khan [2007] 156 FCR 536; 44 AAR 523
Kennedy Cleaning Services v Petkoska (2000) 200 CLR 286
Re Hanrahan and Repatriation Commission (2008) 102 ALD 399; BC200803180
Re Nolan and Military Rehabilitation and Compensation Commission [2012] AATA 454
Re Repatriation Commission and Delkou (1986) 9 ALD 358
Rose and Military Rehabilitation and Compensation Commission [2015] AATA 583
Sandercock and MRCC [2013] AATA 517
Smith v Comcare [2012] FCA 502
Tralongo and Military and Rehabilitation Compensation Commission [2004] AATA 1242
REASONS FOR DECISION
Senior Member CR Walsh
6 October 2015
INTRODUCTION

Mr Corcoran, presently 64 years old, was employed by Airservices Australia (AA) from 6 June 1978 until his retirement on 22 September 2013.[1] Throughout his employment with AA, Mr Corcoran was involved in the provision of Air Traffic Services via air-ground communications on VHF radio and HF radio, initially as a Flight Service Officer in Sydney, Port Headland, Perth and Brisbane and later as a Flight Information Team Leader in Brisbane.[2]
[1] AA was established in 1995 when the Civil Aviation Authority (CAA) was split to form two separate government bodies, being AA and Civil Aviation Safety Australia (CASA).
[2] Exhibit R1 at pp 56-59 and pp 205-210 and Exhibit A1 at p 14.
Mr Corcoran has a “bilateral sensorineural hearing loss” condition which he considers is as a result of exposure to continual excessive noise levels during his 34 years of employment with AA in Air Traffic Services.
On 28 May 2014, Comcare decided that it is not liable to pay compensation to Mr Corcoran under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) in respect of his “bilateral sensorineural hearing loss” condition. Mr Corcoran seeks a review of this decision.
FACTUAL & PROCEDURAL BACKGROUND
In written submissions (undated), Mr Corcoran describes his employment with AA from June 1978 to September 2013 as follows:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Corcoran and Comcare (Compensation)

Details

AGLC: Corcoran and Comcare (Compensation) [2015] AATA 776
Case: [2015] AATA 776
Decision Date: 6 October 2015

CaseChat Overview and Summary

In the case of Corcoran and Comcare, the applicant, Mr. Corcoran, sought compensation for his bilateral sensorineural hearing loss, claiming it was caused by his employment with Airservices Australia. Comcare, the respondent, initially denied the claim, leading to a review by the Administrative Appeals Tribunal (AAT). The AAT was tasked with determining whether Mr. Corcoran's hearing loss constituted an injury or a disease under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), and whether his employment contributed to his condition to a significant degree.

The central legal issues before the AAT were the classification of Mr. Corcoran's condition and the extent to which his employment contributed to it. The AAT had to decide if the hearing loss was an injury arising out of or in the course of his employment or a disease to which his employment contributed to a significant degree. Additionally, the AAT had to ascertain the date of the disease or injury to determine the appropriate compensation.

The AAT reviewed the evidence provided, including expert opinions and noise exposure measurements. It concluded that there was no medical evidence linking Mr. Corcoran's sensorineural hearing loss to his employment to a significant degree. The AAT affirmed the Comcare Decision, holding that the evidence did not support the claim that the employment contributed to the hearing loss to a significant degree. As a result, the Tribunal upheld the original determination, denying Mr. Corcoran's claim for compensation.

The final orders of the Tribunal affirmed the Comcare Decision, dismissing Mr. Corcoran's application for review. The Tribunal found that the evidence did not substantiate the claim that his employment with Airservices Australia contributed to his bilateral sensorineural hearing loss to a significant degree, and therefore, the compensation claim was denied.

Orders

Orders of the court

The Tribunal affirms the decision under review.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 28 May 2014, Comcare affirmed the Comcare Determination (Comcare Decision). The Comcare Decision states:ReasonsIn reviewing the determination of 2 January 2014, I have had regard to all the evidence contained within your claim file, the reasons form requesting reconsideration and the relevant provisions of the SRC Act.………..DiscussionI also must now consider whether, on the balance of probabilities, your claimed condition was contributed to, to a significant degree by your employment with Airservices Australia. Under the SRC Act “significant degree” means a degree that is substantially more than material. This means, the cause of your claimed condition must be clearly and closely linked to your employment. After reviewing the evidence on your claim file, Comcare has not been provided with any medical evidence to state that your ailment, sensorineural hearing loss (bilateral) was contributed to, to a significant degree by your employment. This is confirmed by Dr Mitchell who is a specialist in his field and the report prepared by Ron Rumble.I have considered the evidence before me and I agree that the evidence does not support that your claimed condition was contributed to, to a significant degree, by your employment. Therefore, I consider that the determination of 2 January 2014 was correct and I have affirmed the determination.[16][16] Exhibit R1 at pp 341–343. On 14 July 2014, Mr Corcoran applied to the Tribunal for a review of the Comcare Decision. Mr Corcoran’s stated “Reasons for Application” are:The review decision is wrong in fact and law and the applicant is entitled to compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988.Ron Rumble Report The Ron Rumble Report cites the following “Test Objectives”: (i)Conduct measurements of noise exposure received from headphones by operators of the workstations with AUSFIC; and(ii) Compare the measured noise levels with legislative requirements. The Ron Rumble Report states that testing was conducted between 21 to 27 April 2006 and reference was had to the Workplace Health and Safety Regulation 1997 (Qld) which defines the expression “excessive noise” in reg 68(1) as follows: (1) In this part - “excessive noise” is a level of noise above - (a)an 8 hour equivalent continues A- weighted sound pressure level of 85 dB(A), referenced to 20 uPa.31; or(b)an unweighted peak sound pressure level of 140 dB(lin), referenced to 20uPa.32(2)For subsection (1), the sound pressure level is the level determined at the worker’s ear without regard to the protection available to a worker wearing hearing protectors, andmeasured – (a)for an 8 hour equivalent continuous A- weighted sound pressure level of 85dB(A) – under AS 1269; or(b)for an unweighted peak sound pressure level – by a sound level meter with a peak detector indicator complying with AS 1259.1 The Ron Rumble Report states, in summary, that 8 hours at 85 dBA is the maximum permissible level and that exposure to higher noise levels is acceptable however must be for a shorter period each day. For each 3 dBA increase exposure time must be halved.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL DIVISION
File Number(s)	2014/3617
Re	Peter Corcoran
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Senior Member CR Walsh
Date	6 October 2015
Place	Perth